Petition of Haverty, 46491

• Decision Date: 23 October 1980
• Docket Number: No. 46491,46491
• Citation: 94 Wn.2d 621,618 P.2d 1011
• Parties: In re the Personal Restraint Petition of John G. HAVERTY, Petitioner.
• Court: Washington Supreme Court

Page 621

94 Wn.2d 621

618 P.2d 1011

In re the Personal Restraint Petition of John G. HAVERTY, Petitioner.

No. 46491.

Supreme Court of Washington, En Banc.

Oct. 23, 1980.

John G. Haverty, Walla Walla,

Gene M. Grantham, Bellevue, for petitioner.

Slade Gorton, Atty. Gen., Nate D. Mannakee, Asst. Atty. Gen., Olympia, for respondent.

HOROWITZ, Justice.

This case concerns a personal restraint petition alleging that petitioner's administrative parole revocation prior to this court's decision in In re Akridge, 90 Wash.2d 350, 581 P.2d 1050 (1978), violated his due process rights.

In 1977, while on parole from a prior conviction, petitioner John Haverty was found guilty of second degree burglary and adjudged to be an habitual criminal. He was sentenced to life imprisonment. On January 25, 1978, Haverty's parole was administratively revoked pursuant to RCW 9.95.120.

RCW 9.95.120, the relevant portion of which was enacted in 1961, provided for revocation of parole without a hearing when the basis for revocation was commission and conviction of a new felony. In re Akridge, supra, which was decided August 3, 1978, declared that the parolee's constitutional rights to due process prevented this type of administrative parole revocation and required the state to give the parolee "an opportunity to explain why a subsequent conviction should not result in parole revocation." In re Akridge, supra at 353, 581 P.2d 1050 (applying Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The Ninth Circuit likewise on September 1, 1978, concluded that RCW 9.95.120's provisions for administrative parole revocation were unconstitutional in Heinz v. McNutt, 582 F.2d 1190 (9th Cir. 1978).

The state does not contend that the procedure through which Haverty's parole was revoked would be adequate under Akridge. But Haverty's administrative parole revocation took place over six months before this court's decision in Akridge. Thus, only if Akridge is to be applied retroactively or if Morrissey alone would invalidate the procedure were petitioner's due process rights violated.

We hold that petitioner's constitutional rights were violated and therefore grant his petition for a parole revocation hearing before the Board of Prison Terms and Paroles for the reasons stated below.

I

APPLICATION OF MORRISSEY V. BREWER.

Morrissey v. Brewer, supra, concerned the parolee's due process rights to a hearing before being incarcerated for violation of a condition of parole. Morrissey held:

There must also be an opportunity for a hearing, if it is desired by the parolee, prior to the final decision on revocation by the parole authority. This hearing must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, (apparently not applicable in the case of a conviction) or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation.

Morrissey v. Brewer, supra at 487-88, 92 S.Ct. at 2603 (quoted with bracketed phrase in In re Akridge, supra, 90 Wash.2d at 352-53).

In Akridge, this court held that Morrissey and the due process hearing requirement it set forth prevented the state from administratively revoking the parole of a newly-convicted felon pursuant to RCW 9.95.120:

Our narrow holding is that Morrissey requires that the parolee have an opportunity to explain why a subsequent conviction should not result in parole revocation. The Morrissey requirements grafted on our statutory scheme mandate that this "opportunity to explain" occurs before the body vested with parole revocation authority-the board.

In re Akridge, supra at 353. In this case, Haverty was not given the "opportunity to explain" "clearly mandated" by Morrissey. In re Akridge, supra at 352.

This direct application of Morrissey alone requires us to grant Haverty's personal restraint petition. Akridge itself relied only on the constitutional holding of Morrissey in invalidating RCW 9.95.120. Morrissey set forth a constitutional right to hearings as a matter of due process that cannot depend on the belated realization of that right in Akridge. However, as next appears, even if Morrissey did not compel our decision today the same result would be reached by retroactive application of the rule of In re Akridge.

II

RETROACTIVE APPLICATION OF IN RE AKRIDGE.

Akridge itself does not discuss whether the rule it sets forth is to be applied retroactively. In determining whether to apply a criminal procedure decision retroactively, courts have generally considered three questions:

(1) What purpose is to be served by the new rule? Will retroactive application of the rule effectively serve that purpose?

(2) To what extent has the governmental entity justifiably relied on the preexisting rule?

(3) What effect would retroactive application have on the administration of justice?

Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Wood v. Morris, 87 Wash.2d 501, 554 P.2d 1032 (1976); Brumley v. Charles R. Denney Juvenile Center, 77 Wash.2d 702, 466 P.2d 481 (1970); State v. Durham, 16 Wash.App. 648, 559 P.2d 567 (1977).

A. Purpose of the Rule.

Constitutional holdings relating to the fact-finding process and its integrity and reliability are generally given retroactive application. On the other hand, those decisions limiting the government's ability to obtain and use otherwise probative evidence against the defendant as a rule apply prospectively only. McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); Yellowwolf v. Morris, 536 F.2d 813 (9th Cir. 1976); 43 Fordham L.Rev. 1060 (1975); 21 Syracuse L.Rev. 993 (1970).

The state first argues that the fact-finding process is not affected by the requirement of a pre-revocation mitigation hearing. It contends that since the defendant was convicted in a criminal prosecution in which he was afforded his procedural rights, there is no question as to the grounds for revocation.

However, Akridge was concerned with the parolee's opportunity to present mitigating factors that might prevent revocation. In re Akridge, supra, 90 Wash.2d at 353; see also Morrissey v. Brewer, supra, 408 U.S. at 480, 484, 92 S.Ct. 2593, 2601. The integrity of the revocation fact-finding process, the method through which the decision to revoke is made, is obviously affected by failure to consider in a mitigation hearing those factors given constitutional significance by Morrissey. As noted by the federal court in Heinz v. McNutt, supra, 582 F.2d at 1194, "(p)arole revocation considerations may differ from those involved in the sentencing for a criminal conviction."

The hearing required by Akridge satisfies the parolee's liberty and society's rehabilitative interests by insuring that the decision to revoke is made on an adequate factual basis. This is the type of purpose traditionally afforded retroactive application. See Linkletter v. Walker, supra (requirement of hearing on voluntariness of confession made retroactive).

The state next argues that the retroactive application of Akridge will not effectively further protect the integrity of the fact-finding process because as a practical matter the prisoner has already had an opportunity to present mitigating circumstances during the hearing at which his minimum term was set. ¹ This hearing did not, however, insure the procedural integrity of the revocation decision itself. The minimum sentence hearing is not expressly provided for by statute, but is an informal procedure held pursuant to RCW 9.95.040, .170. It is generally held at the site of imprisonment; there is no authority for the prisoner to call witnesses and he is not represented by counsel. A parole revocation hearing, on the other hand, is held near the site of the parole violation. RCW 9.95.120. The parolee may be represented by counsel, RCW 9.95.122, and may call witnesses. RCW 9.95.123. The parolee must be given a written statement of the violations of parole allegedly committed prior to the revocation hearing. RCW 9.95.121.

It is true that the damage sought to be rectified by Akridge -unwarranted revocation and loss of liberty-has already been done. But this error can be rectified by fulfilling the prisoner's due process right to a hearing undertaken with sufficient regard to those factors given constitutional significance by Morrissey. Akridge's purpose of preserving the integrity of the revocation process is one often given retroactive application.

B. Reliance on Pre-Existing Rule.

The state argues that in administratively revoking paroles it relied on the continuing validity of RCW 9.95.120 after Morrissey. In support of this proposition, the state cites this court's unpublished order denying a prisoner's writ of habeas corpus in Heinz v. Morris, No. 44046 (February 13, 1976).

In Heinz, the order signed by the Acting Chief Justice stated:

By administratively revoking the petitioner's parole without a hearing following petitioner's commitment to an adult correctional institution based upon a new felony conviction, the Board of Prison Terms and Paroles has complied both with applicable statutory and constitutional directives.

Akridge, of course, rejected that interpretation of administrative parole revocation. As will be seen below, Heinz does not have precedential value sufficient to justify the state's reliance on RCW 9.95.120 prior to Akridge.

This court is obliged to state the grounds for its decision, State v. Mitchell, 55 Wash. 513, 515, 104 P. 791 (1909); the order in Heinz cited no precedent and provided no analysis for its conclusion. The federal courts have afforded little precedential value to summary affirmance without an opinion of...